April 5, 2012

After last week's superb performance attacking the constitutionality of the Affordable Care Act in the Supreme Court, former Solicitor General Paul Clement was in federal court — the 1st Circuit Court of Appeals — yesterday, defending the constitutionality of the Defense of Marriage Act.

There are 2 cases on appeal:

In the case brought by Martha Coakley, the Massachusetts attorney general, [Feder District] Judge Tauro found in 2010 that DOMA compels Massachusetts to discriminate against gay couples who are legally married under state law in order for the commonwealth to receive federal money for certain programs.

The other case, brought by Gay and Lesbian Advocates and Defenders, focused more narrowly on equal protection as applied to federal benefits. In that case, Judge Tauro agreed in 2010 that the law violated the equal protection clause of the Constitution by denying benefits to one class of married couples — gay men and lesbians — but not others.

On the equal protection ground, Clement argued that Congress's legitimate interest was to have "a uniform definition" of marriage rather than to use state law, which varied from state to state (even though marriage laws have always varies from state to state, and Congress otherwise relies on state law to determine who counts as married for federal purposes).

Maura Healey, the assistant attorney general who argued on behalf of Ms. Coakley, told the panel that DOMA requires Massachusetts “to live with two distinct and unequal forms of marriage.” She added, “This is a burden that Congress has imposed on Massachusetts simply because it doesn’t like the fact that gay people are getting married.”

Stuart F. Delery, the Justice Department’s acting assistant attorney general for the civil division, also argued before the panel, saying that the court should hold DOMA to heightened scrutiny because it targets “a group with a long and deep history of discrimination.”

Isn't it wonderful that we have this opportunity to examine what we've been saying for the past week about the role of the judiciary and deference to democratic decisionmaking? I assume many people who want the ACA upheld want DOMA stricken down, and many who want to keep DOMA want ACA crushed. So have at it. And please be consistent.

As a law professor, it's easy for me to argue any of the 4 possibilities, so I'll let you start the conversation. First, a survey:

132 comments:

My inclination is to think that both are unconstitutional -- marriage doesn't seem like a proper subject for federal regulation -- but I don't know what power DOMA is supposed have been enacted under, and actually don't know what precisely it does (and am too lazy to go look it up right now). Looking forward to peoples' explanatory comments.

For starts, it's consistent to hold that both deciding who gets married as well as and who pays for and who decides the form of your health insurance is outside the enumerated powers of government. Strike them both down and let individuals decide these very personal matters.

What a partisan hack! Last week he was saying that Congress couldn't do something, this week he's saying that it can! Trying to have it both ways, hmmn? ;)

I tend to agree with Bork that DOMA is DOA at the Supreme Court. Say what you want about the actual constitutionality of the act, either affirmative or negative, but in a very real sense, "[t]he answer is whatever the highest court says in the end," in an even more real sense, the answer is whatever Justice Kennedy thinks, and there is just no way after Romer that anyone could think that Kennedy votes to uphold DOMA.

I think Balefegor inclination is wrong. I can think of two reasons for the Feds to be involved. The first is for income tax purposes. The Feds get to defined "married" for that purpose. And the second one would be linked to interstate commerce in that if the Feds did not define marriage, then the other states would be forced to accept another state's definition of marriage.

In the case of DOMA, I'm pretty sure the part defining marriage as between a man and a woman is unconstitutional, as it treads on the State's authority to define marriage laws for itself. However the section that guarantees the rights of other states not to recognize gay marriages performed in other states is within Federal purview.

My gut is that they are both unconstitutional, so that's what I picked. But if this were something more serious than a blog post (no offense, Professor), I'd probably have to admit that I haven't done enough analysis on the DOMA issue. I've always thought that it should fail on full faith and credit, but that doesn't seem to be the argument.

I've always wondered, though, and never really seen an explanation - how is/was this sort of thing handled in other cases of radically different marriage laws? I.e., in the days of widespread anti-miscegeation laws, did this come up? How about now, where a person can marry a first cousin in a few states, but not most? Why can't we do the same thing that's been done with these cases(which I assume is - if the state says they're married, they're married)?

On September 21, 1996, President Bill Clinton signed DOMA into law. It passed both houses of Congress by wide margins (342–67 in the House and 85–14 in the Senate) — much wider margins than Obamacare got (219–212 in the House and 60–39 votes in the Senate).

I look forward to Obama saying that it would be "an unprecedented, extraordinary step" if the court overturned "a law that was passed by a strong majority of a democratically elected Congress."

bagoh20 said..."For starts, it's consistent to hold that both deciding who gets married as well as and who pays for and who decides the form of your health insurance is outside the enumerated powers of government."

Well, of course, but what's inconsistent is questioning the authority of the court to strike down an act of Congress you like and insisting on its authority to strike down an act you don't. It's been kind of funny to hear the left attacking the courts (the primary battering ram with which they have attacked the status quo for decades) and the right (remember that book a couple of years ago insisting that the court made up judicial review in Marbury?) defending it. If it's a genuine change of heart, I'll take it!

I suppose that too many poll options would make the thing unwieldy, but this doesn't take into account that some legislation can be a good idea and still be unconstitutional, and some can be a bad idea and still be constitutional. It seems to me that one can believe the ACA is unconstitutional and the DOMA is not, because their respective constitutionality is based upon different arguments. ACA depends upon congressional power under the Commerce clause, DOMA's opponents claim Equal Protection violations. Accepting one argument, but not the other is not, as you imply, inconsistent.

traditionalguy said..."The Federal guys need an Amendment befor they can tell States what marriage is."

DOMA does no such thing. It protects states (cf. U.S. Const., Art. IV, § 1), and the federal government from radical decisions by individual states. Nothing in DOMA prevents a state from changing its legal definition of marriage.

"I assume many people who want the ACA upheld want DOMA stricken down, and many who want to keep DOMA want ACA crushed."

This is a natural left/right division. I think we're trending libertarian these days, as above commenters show. Legal/constitutional arguments aside, more people are tending to think the government should just butt out.

Why do we spend so much time talking about the President? It should be Kennedy coverage 24/7. Where is he? Who's he with? What kind of pants does he wear? He's the most important man in the world because he's unreliable and inconsistent. So why should I be consistent. Is it better to be right or important?

Part of the law falls under Article IV, the "full faith and credit" clause. North Carolina does not recognize gay marriage. A gay couple runs off to Massachusetts and gets married. Does N.C. have to recognize their marriage now?

That's a federal issue, in my opinion.

Of course every state has authority over marriage. And every state should have the power to define marriage for its citizens.

So if D.O.M.A. merely protects North Carolina's right to define marriage, it's okay.

But if this is true...

DOMA compels Massachusetts to discriminate against gay couples who are legally married under state law in order for the commonwealth to receive federal money for certain programs.

For starts, it's consistent to hold that both deciding who gets married as well as and who pays for and who decides the form of your health insurance is outside the enumerated powers of government. Strike them both down and let individuals decide these very personal matters.

That's how I would approach it, but that does not seem like the argument those seeking to overturn the law are making.

They're making a 14th Amd equal protection clause. I think the baggy approach is better, but, of course, where almost 100 years out of date Sup Ct wise.

Bob Ellison said..."I think we're trending libertarian these days, as above commenters show. Legal/constitutional arguments aside, more people are tending to think the government should just butt out."

Pure libertarianism has little enough to recommend it, we're trending towards ignorant, superficial, knee-jerk libertarianism, which has nothing at all to recommend it.

Unless marital status is going to have no federal legal consequences at all (which thoughtful libertarians do argue), the federal government has two choices, and only two choices: It can define what it accepts as marriage, or it can be held hostage by whichever state happens to have the most radical redefinition of "marriage." There is no serious argument for the latter, which leaves the former. And that's all DOMA does for federal purposes—which people would know if they had read it.

Moreover, in a federal system in which separate sovereigns are obliged to give full faith and credit to the acts of their peers, the question inevitably arises as to what effect one state's radical redefinition of marriage may have in another state, and to the extent the Congress has authority to help resolve such squabbles, it's hard to imagine a serious argument against exercising it. And that's all DOMA does for state purposes—which people would know if they had read it.

The problem isn't libertarianism so much as it is that given clever presentation of the issue by one side, the "get the gummint out of everything" impulse short-circuits rational evaluation of the issue.

Unconstitutional on both. Another example of wanting it both ways. Big government only when it suits you.

I think that this is overly simplistic - being against big gov't doesn't mean that all gov't is bad always. Some gov't and some laws are necessary and good, but others are not and constitute overreach.

Marriage was a religious matter before man invented government. The king became involved in marriage only by "divine right". The solution is to restore marriage solely to the religious realm. Gay folks will be able to find a church to marry them. Religious folks who hold religion as a divine sacrament between a man and a woman can be comforted that their children cannot be inculcated otherwise in public schools. To do so would be to promote a particular religious belief.

Both are unconstitutional. ACA violates the 9th and 10th amendments. DOMA violates the 1st and 9th. Marriage has been defined by religion for millenium. There is no need for the US to codify a religious construct.

The real question is whether the President will come out in defense of legislation passed by broad bi-partisan approval. And, whether in doing so, that would move him back firmly in the camp of being a loyal boyfriend.

Agree with Leland as far as DOMA. At least it violates the 9th Amendment. Marriage as a legal issue was the province of the colonies before the US of A came along and the province of the States afterward.

As for ZeroCare, not having the benefit of La Professeure's legal tutelage, I have to go with Judge Napolitano' counsel and say invalid by dint of the Commerce Clause.

traditionalguy said..."OK Simon...The DOMA tells States what marriage is not going to be. Is that better?"

No it doesn't. It says what will be counted as marriage for federal purpose. They do not need a Constitutional Amendment "that says they can do that." There is no serious argument that if Congress has the power to tax, it lacks the power to not tax, and to define the categories of things which it exempts from tax. That in no way aggrandizes the power of the feds or contracts the power of the states.

Leland said..."Marriage has been defined by religion for millenium [sic.]."

Marriage was defined by God a lot longer ago than a single millennium. It is the height of arrogance for humans to think they can change that definition, but we can nevertheless see quite clearly how we got here.

"Part of the law falls under Article IV, the "full faith and credit" clause. North Carolina does not recognize gay marriage. A gay couple runs off to Massachusetts and gets married. Does N.C. have to recognize their marriage now?"

St Croix, there's a further issue: why does full faith and credit apply to state acts like marriage and not to other state acts like Concealed Carry Licenses? Shouldn't Massachusetts have to recognize an NC CCL?

Congress does not have the power to pass either DOMA or ACA. I don't think we even have to get to an equal protection argument to strike DOMA. There is no more connection to interstate commerce of a marriage than there was of Perez's gun at the school. I can't think of another enumerated power of Congress under which DOMA could reasonably be justified (unless the law compels the states to adopt the definition under pain of losing money granted under federal law).

I do not support gay marriage, but we either need to encode that 'moral/legal' position in the constitution, or leave it to the states.

A federal statute is misguided.

And, then, we either need to change the constitution to require 2/3's vote in the senate and the house, for a federal judge to be seated

Or we need to completely throw away the notion of deference to the president in the confirmation of nominated federal judges.

Because it is a huge flaw in our system if a judge put in by mere majority can find in thin air a constitution right that goes against the morality of the majority, but then the citizens can only fix that "find" and reassert the public's desired line of morality by a super majority of the legislature and states.

It seems to me that there is a historical analogy to the federal government recognizing different marriage laws based on state residency; voting laws.

Prior to the 19th Amendment, a woman living in, say, Missouri could not vote for President, but if she lived in Wyoming, which allowed her to vote, she could, even for Federal offices.

It seems to me that the government has the obligation to treat people married under the laws of their states as married, at least as long as they're living in that state.

Another question. Anyone know how the Federal government treats people married in other ways not all states recognize? The amount of biological propinquity allowed under the law is different in various states. In some, 1st cousins can marry. Also, there are differing ages of consent. How does Illinois treat a marriage illegal under its own laws, but legal in, say Missouri? How does the Federal government?

Truthfully, I'm not sure whether DOMA is unconstitutional or not? Though there has been a huge expansion of the Federal government's size, I'm not sure what it is tied to that could make it constitutional. Either way, it definitely is a usurption of a traditional State power and we'd be better off without it.

My position is that the government does not belong in this business anymore. They have no special competence in this arena. They have no special competence in many arenas they should butt out of.

If the government is no longer allowed to be involved, that pulls alot of political fangs on both sides that are merely fodder for opportunistic politicians to exploit divisions in the peoples opinions for their personal career desires.

The Congress has no power to enact DOMA, but there is an equal protection argument vis-a-vis marriage, correct?

I'm not particularly sympathetic to the equal protection argument vis-a-vis marriage, but I don't see anything unusual in Congress being prohibited from conduct in multiple different ways, i.e. both because the Constitution denies it the power to regulate in an area, and because a separate right prevents them from regulating in a particular way, even if they had general competence over that area.

There are those who claim that allowing same-sex "marriages" will lead to demands that multi-partner like relationships to be allowed under law. From hardly noticed news items, there have been such moves in other places.

If this continues, our only question may be: "WHAT IS THE AGE-OF-CONSENT FOR A SHEEP?".

The only point I will make....gays are not treated differently. They have all the same rights are straight people.

1940s southern US Jim Crow laws were not about banning (yes, I am using stereotypes to make a point) blues music, while allowing country music. It was about saying because you are black, you can't do the exact same things as whites can.

(1) DOMA does not disturb, in anyway whatsoever, a state's laws concerning marriage. In fact, it is designed to protect those state laws. DOMA does not override Massachusetts law.

(2) Again, DOMA was designed to protect the laws of various sovereign jurisdictions. Just as Utah cannot tell Massachusetts what marriage is or should be, neither can Massachusetts tell the federal government what marriage is or should be. For state purposes, Massachusetts is free to do whatever it wants, but for federal purposes, including financial benefits, the federal government controls.

(3) If Massachusetts wants to argue that the withholding of federal funds is wrong, then they should argue that -- that such withholding violates the Spending Clause (as argued in the ObamaCare Medicaid expansion case). It is not necessary to even consider DOMA here.

Sgt Ted and Rcomal...I agree. One of the main reasons the nation is so divided and why politics is so nasty these days is because the gov't is so large and all-controlling.

Since the gov't is involved in almost all aspects of our lives, that means you have to fight your political opponents that much harder.

The new bridge over the St Croix river into Minnesota. Left and right policians worked together on that. Crazy Al Franken, Michelle Bachmann, Mark Dayton, Scott Walker and Sean Duffy all held hands and did a group hug on this project. That is because this is what the gov't is supposed to do. Build bridges. Not be in my bedroom or church or stand between me and my insurance company, telling me what I have to buy and what I am forbidden to pruchase.

DOMA requires Massachusetts “to live with two distinct and unequal forms of marriage”

No, DOMA requires Massachusetts to live with 51 distinct and unequal forms of sovereign government (50 states and the federal government), each entitled to its own laws for its own purposes. We are governments of limited powers -- even the Full Faith and Credit Clause has its limits.

OK Simon...The DOMA tells States what marriage is not going to be. Is that better?No, that’s not accurate at all. Nothing under DOMA prevents a State from defining “marriage” however they want or choosing to recognize a “marriage” from another State. The only things it does is state that (a) the federal government will only recognize marriages that are between a man and a woman for situations where it distinguishes between married and unmarried persons and (b) that States are only required (under the Full Faith and Credit Clause which allows States not to recognize contracts that conflict with their public policy) to recognize marriages that are between a man and a woman.

Section 2: No State, territory, or possession of the United States, or Indian tribe, shall be required to give effect to any public act, record, or judicial proceeding of any other State, territory, possession, or tribe respecting a relationship between persons of the same sex that is treated as a marriage under the laws of such other State, territory, possession, or tribe, or a right or claim arising from such relationship.

This section is a full faith and credit issue and is squarely within the Federal Govt's power.

Section 3: In determining the meaning of any Act of Congress, or of any ruling, regulation, or interpretation of the various administrative bureaus and agencies of the United States, the word 'marriage' means only a legal union between one man and one woman as husband and wife, and the word 'spouse' refers only to a person of the opposite sex who is a husband or a wife.

This section defines marriage for federal purposes. There's nothing unconstitutional about that. It doesn't define marriage for the states who are free to use a different definition.

What is constitutionally suspect with respect to DOMA, however, is Obama's attempt here at a ex post facto, sub silento veto of the law by instructing the Justice Department to take a dive here.

Moreover, such a tactic violates the Case and Controversy Clause. If both Healey and Delery are arguing for the same thing, if they are both on the same side, then there is no live controversy here, and the case should be dismissed for lack of Art. III jurisdiction.

If Obama wants to override DOMA and provide the funds that the challengers want, then he can simply pay them the funds. Getting a ruling on DOMA is not necessary. There is no live controversy here.

If you say so, but I just go by whatever was written down in texts. The text I read isn't all that old.

On another note, some of the other problems that I remember arguing, like the rights of a domestic partner to have access to medical information on their ill partner; well that could be resolved not through additional legislation but by repealing another act passed with bipartisan support and signed by a Democratic President.

If the government didn't hand out benefits on the basis of who is "married" and who is not, then there would be no need to define who is "married". Let's make the question moot by not handing out the benefits.

This is a burden that Congress has imposed on Massachusetts simply because it doesn’t like the fact that gay people are getting married.

Of course gay people are only getting married in Massachusetts because the court in that state engaged in a breathtaking act of judicial activism to create a "right" to gay marriage which existed nowhere in the state constitution.

In a cynical bootstrapping maneuver this is now being used as a justification for striking down not only the law in Massachusetts but the law in the United states.

Congress otherwise relies on state law to determine who counts as married for federal purposes

That's begging the question, since what is at issue in all these sorts of cases is whether Congress (and state legislatures) are to have any power at all or whether the law is to be made by the courts.

I have no idea if DOMA is constitutional, but certainly my preference is that it be struck down. Apart from my support for gay marriage, my libertarian instincts tell me that this is yet another arena in which the federal gov't has no business.

I'm actually comfortable with some states recognizing it and others not. Over time I think we'll see uniformity, but the states need time to try it out to see whether the sky falls or not.

"We are thus confronted with the anomaly that both litigants desire precisely the same result . . . There is, therefore, no case or controversy within the meaning of Art. III of the Constitution." --Moore v. Charlotte-Mecklenburg Bd. of Educ., 402 U.S. 47 (1971) (citing Muskrat v. United States, 219 U. S. 346 (1911)).

While merely pondered in the ObamaCare cases, here there IS a "conspiracy" -- Obama has expressly ordered the Justice Department to "throw the game."

The parties here are not adverse, they are on the same side of what has become a friendly suit. The government has indicated that it is all too eager to give the challengers the relief they seek. Judicial intervention is thus not warranted.

I can look in my dictionary, and find out that marriage is between a man and a woman. It doesn't say, between two men. It doesn't say, between two women. It doesn't say, between a man and four women. It doesn't say, between a man and a sheep. It doesn't say, between a woman and a horse. It's really that simple.

As far as the Affordable Care Act, it isn't in the dictionary and therefore will have to be judged on the constitutionality of the Act by the SCOTUS. I doubt if it's constitutional.

Constitutionally, the feds can regulate specified activity that affects in a large way the interactions between the states. Medical care and marriage between consenting adults are local activities. We do not cross state lines to go to our local doctor. We generally live in the state we both get married in. The enumerated powers of the fed. gov't do not include the words "marriage" regulation of the family or contraception, abortion, medical care or even education. Local activities like this should be regulated locally. Hence both acts are unconstitutional. Of course federal money (bribes) screws everything up and if you take the king's gold, the king will have something to say about it. So I am right but ultimately I lose the argument but it does not make federal bribery legal, moral, right or justifiable.

I would think it would be consistent for SCOTUS to declare "marriage" to be a religious rite and a private matter between the individuals involved and their religious institution(s), and that the Federal Government and the States are all free to establish "civil unions" with whatever rules the respective legislatures might want to establish for taxation purposes and other privileges and obligations falling under their various jurisdictions.

I think that the federal law portion of DOMA is most likely Constitutional. After all, who better to determine who can file their federal income taxes as married than Congress? And, shouldn't that definition be uniform across the country?

I think that the Full Faith and Credit portion is a bit iffier, but still maybe within the ambit of Congress. After all, the purpose of this portion of DOMA is to regulate the relationships between the various states, and, again, that would seemingly be within the power of Congress.

Keep in mind that the ill that is being protected against with the later is that the recognition by one state of what they consider to be a "marriage" will extend automatically to the other states, when those involved move, and that historically, the bigger issue on marriage has been polygamy, and not same sex marriages.

Marriage arises out of human nature; religion no more invented it, than religion invented sex or eating.

Religions offer differing meanings for these things, depending on what they claim about God and human meaning.

It is silly to claim, as some do, that religion shouldn't have anything to say about sex--because then, one is saying sex is so trivial as not to bear on ultimate questions of divinity or human destiny. And that seems an extraordinary thing to assert about human sexuality.

How curious: it is the anti-religious position that ends up being non-empirical, non-intuitive and contrary to actual experience.

And here we have Obama continuing to not talk about issues of any relevance:

President Obama thinks women should be allowed membership in the Georgia golf club that is hosting the Masters tournament this week, according to the White House. ...Carney said he spoke to Obama, an avid golfer, about the club's controversial rule, and the president expressed his opinion that women should be allowed to join.

"It's obviously up to the club to decide," Carney noted. "But his personal opinion is that women should be admitted to the club."

As others have said, to the extent the federal government dispenses benefits, or exacts taxes, in relation to whether one is "married," then this question comes up.

I would be curious to know if there was a prior case of the federal government adopting a federal position on marriage, where there were distinctions between states that raised significant questions of morals or liberty?

That is to say, differences between states on, say, ages of consent or degrees of relation probably have not been viewed as terribly weighty.

I'd be curious to know what happened, however, in years past when a mixed-race married couple arrived in a jurisdiction that banned mixed-race marriages?

Not that I agree with those who make a moral equivalence between such laws and retaining marriage as heterosexual; but it does bear on the legal questions about the "full faith and credit" clause.

I'm against redefining marriage; but I also believe in federalism. My venue for fighting this battle is Ohio; until such time as I move to Massachusetts, I can't do much about its laws.

But if you really want that outcome, then we scale back the power of the federal government across the board.

I'll draw an analogy with the contraception-as-part-of-insurance issue.

When insurance companies were free to design their own plans, and consumers were free to choose, then I didn't any reason to complain about what your insurance plan covers, so long as I could influence what mine covered.

But when Obama and Congress forced us all to accept the same insurance plan, and your insurance becomes my insurance, now we have conflict.

SImon...After Appomattox there has been little doubt that States are subject to the Federal Law. The 14th Amendment put that reality into writing quite well.

The problem is that the Federal Law here called the DOMA is itself subject to the a Constutional subject matter restriction...and if it is not, then Obama's assertion of a Commerce Clause that ate the Constitution is correct.

As an example, bad results are not an excuse to ignore the Constitution. The Black Codes attempted to reverse the 14th Amendment and in Plessey v. Ferguson that was allowed because it corrected "bad results" of equal rights being granted to less than pure white folks.

By this analogy, the good goal of a law is never the test. The Constitution still controls the laws until amended.

Yes, Father Fox points out the error here, David. I assume that you meant what Simon said -- "Marriage was defined by God."

But that too is somewhat misleading.

Again, as Father Fox explains, "marriage arises out of human nature," out of our nature as human persons, male and female. And (expanding on that) because the ontological nature of marriage arises entirely out of our nature as human persons, it can and does apply to everyone, believers and non-believers, religious and atheists alike. We need not get bogged down in questions of religion here.

Now, if you are a believer, it is perfectly proper to take that next step and recognize that God created our humann nature. Accordingly, since God created our human nature, and marriage arises out of our human nature, God in a certain sense created marriage. But to state this conclusionary latter point from the outset is to leave out a step.

The Congress has no power to enact DOMA, but there is an equal protection argument vis-a-vis marriage, correct?

The strongest equal protection argument I have heard was from a lesbian lawyer, who said we should think of it like Loving v. Virginia. Her argument was that we can't discriminate on the basis of race in marriage. And so we shouldn't discriminate on the basis of sex in marriage, either. That's a big, bold argument.

Yet I think there are important differences we should recognize between race and sex. Race discrimination is irrational and vile. But sex discrimination is not irrational at all. Nor is it vile. Sex is how humanity reproduces! And in order to reproduce, we recognize sex difference.

Race is a construct. How many races are there? We don't know. You can't answer that question. As soon as you try to answer it, two people of different races mate and have a baby. Boom! New race is created.

Reproduction destroys any and all racial boundaries.

But sex? Sex is far stronger than race. Sex is biology. It's fundamental. How many sexes are there? Two. We can answer that question. Sex is not an arbitrary classification by mankind. It's set in stone by mother nature.

People try to change their sex, via surgery. (It's an interesting aspect of human existence that we love to cross boundaries). But we do not actually switch over, do we? Science has not figured out a way to impregnate a man. Every baby has a mother, and a father.

We tinker around with this. We reproduce in a test tube. We say we have two mothers, and a sperm donor. Or perhaps we have two fathers, and a uterus we rent for nine months. But this is horseshit, biologically speaking.

Baby has a mother, baby has a father. Science has not figured out how to get around this.

Try to find some "equality" in our abortion laws! Women get pregnant, men don't. This is a fundamental sex difference.

Sex discrimination is not irrational. In fact, I would argue the opposite. Being oblivious to human sexuality is the political construct. Are we to believe that nobody cares about the sex of their partner?

That's like saying gay people ought to use birth control, too.

If two gay men want to have a biological child, they need to find an egg donor, and a uterus. That's right, man, you need a woman! And if two lesbians want to reproduce, they need to find a sperm donor. Yes, ladies, you need a man!

In short, sex discrimination is far more natural and nice than racial discrimination. Certainly it's more rational.

Bruce Hayden who better to determine who can file their federal income taxes as married than Congress? And, shouldn't that definition be uniform across the country?

Should it? Obviously, it's somewhat neater if it is, but by how much (particularly when it comes to sorting through the US Tax Code)? I'm not convinced that having a blanket rule that says that "if you got married under state law, then you are married for the purposes of federal benefits/taxes" is effectively any more complicated or troublesome then some uniform definition of federal marriage.

(Note that this rule would be completely different for polygamy, as that would definitely be more complicated and troublesome.)

Hmmmm when nearly 50% of the adult population pays virtually no income tax and the other 50% does there must be equal protection clause pony somewhere in there. And speaking of the ACA and the exempted class.......

Marriage existed long before this "entire country" and the Constitution were even founded. This country and Constitution did not create marriage, they cannot recreate marriage.

Why not? Parenthood used to include the right to beat, kill, or sell your children. If we've redefined marriage to exclude polygamy, why can't marriage be refined further?

Personally, I find these static definitional arguments really unconvincing. The real question, IMO, is whether gay marriage is detrimental to civil society. It's a hard one to answer because the negative effects, if any, will surface in subtle ways.

Saint Croix said..."The strongest equal protection argument I have heard was from a lesbian lawyer, who said we should think of it like Loving v. Virginia."

Sure, let's think of it like Loving. That case concerned antimiscegenation laws in which states asserted a power to redefine marriage. (They argued that they were not bound to God's definition of marriage as a man and a woman, and could thus superadd the requirement that the man and woman have skin of comparable melanin saturation.) That claim was not accepted. If Loving is the comparison, SSM loses.

traditionalguy said..."The problem is that the Federal Law here called the DOMA is itself subject to the a Constutional subject matter restriction...and if it is not, then Obama's assertion of a Commerce Clause that ate the Constitution is correct."

All federal law is subject to two knids of restrictions, afffirmative ("is this within the enumerated powers") and negative ("does this violate anyone's constitutional rights"). But the commerce clause is not the only font of federal authority. As I said above, the federal government has the power, for example, to tax. It has the power to not tax. It has the power to tax, with certain exceptions. And thus, for reasons explained in Federalist 44 among other places, it has the power to define for such purposes the meaning of terms critical to such exceptions.

Bender said...

Marriage was a religious matter before man invented government

Yes, Father Fox points out the error here, David. I assume that you meant what Simon said -- "Marriage was defined by God."

But that too is somewhat misleading.

Again, as Father Fox explains, "marriage arises out of human nature," out of our nature as human persons, male and female. And (expanding on that) because the ontological nature of marriage arises entirely out of our nature as human persons, it can and does apply to everyone, believers and non-believers, religious and atheists alike. We need not get bogged down in questions of religion here.

"Now, if you are a believer, it is perfectly proper to take that next step and recognize that God created our humann [sic.] nature. Accordingly, since God created our human nature, and marriage arises out of our human nature, God in a certain sense created marriage."

God created marriage, period. See Gen 2:18 et seq. Whether one chooses to believe that or not is irrelevant to the truth of it.

"But to state this conclusionary latter point from the outset is to leave out a step."

Let's say this again. For the last 10,000 years of recorded history, while often little units of humanity clung together in a precarious existence in the hope they would not become locally extinct through the ravages of nature, disease, starvation, war or the predatory nature of their fellow savages, we learned to celebrate the presevation of our species through the joinder of two people capable of using our regenerative powers to preserve the race while commiting their two selves to join in a family unit for decades in order to raise their progeny, which they created, until said children could be self supporting adults capable of making their own families. This celebration is known as marriage, the committment of two people to stay together to raise their children. Why now are we celebrating the regnerative power of gays, to stay together to raise the fruits of their wombs when they can't generate any, and male gays don't have any wombs? I don't think the gays get the point of the marriage celebration as it has been practiced since the dawn of time. Give 'em all the same government rights, but I don't want to celebrate their regenerative powers since, man on man, and woman on woman, there isn't any. Check your biology cuz this stuff does come from biology. Living and sexually reproducing animals existed on earth (including dinosaurs and insects) for at least a billion years before humans came around so we really did not invent the sexual point that marriage and preservation of the race recognizes and celebrates. Gays have the same right, and have been reproducing and marrying people of the opposite sex for centuries the normal way everybody else does, so don't give me that pap about discrimination.

Blue@9 said: IMO, is whether gay marriage is detrimental to civil society. It's a hard one to answer because the negative effects, if any, will surface in subtle ways.

That's the really interesting question to me, too (though not the Constitutional one). I support SSM, but do have concerns, too.

Pros: Marriage is inherently stablizing (married people are better for society in general in almost every way - it seems reasonable to assume that this is true for gays as well); fairness; avoid these hospital/property/etc. issues that keep coming up.

Cons: Potential threats to religious freedom (slippery slope argument - i.e., that people would be forced to service gay marriages in ways that go against their beliefs); Potential slippery slope towards other marriage issues (polygamy is harmful to society in a lot of ways that SSM would not be); Childrearing (I'm still on the fence whether that's OK); Society further disconnecting sex from reproduction (some is OK, but can go too far); Marriage being redefined to be monogamy-optional.

Actually, the monogamy-optional thing is what bothers me the most. I know that some straight couples do that, but it's unsual enough to be weird, and it usually doesn't work. But there does seem to be a strain of thought that says that male-male partnerships shouldn't presume monogamy. If this catches on and bleeds over into straight partnerships, I see a lot of downsides for society. These sorts of partnerships are (often) inherently negative to women; they are unstable; parenting becomes a major concern; etc.

It's not enough to make me choose to support SSM on balance, but it does bother me.

That is not a redefinition, that is a regulation of a pre-existing state.

Oh, I see. It's regulation when it goes your way, but it's redefinition when it doesn't. Why not just admit that marriage today isn't what it was 2000 years ago? Marriage existed before Christianity ever arose, but I doubt you want to go back to that.

Today marriage is a civil institution. You can go down to the courthouse and get a clerk to marry you and your fiancee. Times change. There are institutions and customs worth retaining, but we have to constantly ask ourselves the value of retaining such things. Simply saying "that's the way it's always been" is not a very good argument.

I'm sure you sense it too, but I very much doubt the future is on your side. Our society is become less and less homophobic (okay, maybe that's too strong a word-- how about 'less inclined to think of homosexuality as deviant'). Look at kids today-- same sex relationships are accepted in a way that was absolutely unthinkable when I was a child. As these kids grow up and the baby boomers die off, gay marriage will be as accepted and uncontroversial as interracial marriage is now. That's my take.

Oh, I see. It's regulation when it goes your way, but it's redefinition when it doesn't.

No. You don't see.

The laws against polygamy did not redefine marriage to say that there was no marriage. Rather, it took marriage as it is -- male-female union -- and made it criminal to enter into two or more such male-female unions. The definition remains the same, but it is regulated, just as the requirement of a license is a regulation.

The laws against polygamy did not redefine marriage to say that there was no marriage. Rather, it took marriage as it is -- male-female union -- and made it criminal to enter into two or more such male-female unions. The definition remains the same, but it is regulated, just as the requirement of a license is a regulation.

Good grief. The fact is that marriage from way-back-when is not the same as marriage today. A man could marry more than one wife. Marriage was contracted by the paterfamilias-- the "owner" of the bride to be. The woman had no say in it. Marriage was solely the province of religious authorities, because it was a union sanctified by the powers that be. Throughout history, marriage has been redefined, refined, chopped up and put back together to serve the interests of society. You've taken *one* aspect of marriage from way-back-when, the man + woman component, and now pretend that this is the one unassailable characteristic that defines marriage. It simply isn't, no more than the old fable that marriage exists solely for procreation.

You've taken *one* aspect of marriage from way-back-when, the man + woman component, and now pretend that this is the one unassailable characteristic that defines marriage.

But legally it is. It has a definite meaning in society and law. You might not think it matters, but it does. Do you want to redefine the meaning? You can do that by changing the law, but how are you going to change larger society where the term 'marriage' has both social and religious meaning. Will changing it to include non traditional pairings cheapen its currency?I don't think you can hijack the language in this sense and keep the meaning.

Here's a deal. I'll trade striking down DOMA for ACA strike down. Now normally being a libertarian, I'm against DOMA on the principle, but I'm willing to engage in some horse-trading to get the bigger thing I want.

It simply isn't, no more than the old fable that marriage exists solely for procreation.

That's not the only purpose it serves (historically, at least in the English-speaking countries, there's also been an ideal of companionate marriage and there's that bit in the marriage ceremony about restraint of lusts, etc.), but the procreative bit is what makes marriage special and distinct from other deep interpersonal relationships --friends, lovers, etc. It's the designation of legitimate procreation and familial continuation. And while the romantic love bit is highly variable across cultures, the procreation and familial succession concepts are sort of the least-common-denominator that lets us recognise marriage equivalents in other cultures (as opposed to, say, blood brother ceremonies or whatever).

If marriage is reduced to a form for the solemnization of romantic love without reference to procreation and legitimacy, what's the point? Why is eros more deserving than, say, philia or storge? And empirically, people can develop deep romantic relationships with multiple lovers (that's why they cheat, after all), so why limit it to one?

Marriage serves many purposes, and it's cast a broad penumbra so that many non-procreative relationships use the form for unrelated purposes (expressions of romantic fidelity, obtaining green cards, etc.), but once you take procreation out of it, it really makes no sense.

Federal or state governments may not define "marriage" for tax or other purposes for the same reason they may not define "prayer" for tax purposes. They can't include or exclude gay marriage for the same reason they can't decide adult vs. infant baptism. That violates the 1rst amendment and (in the case of states) section 1 of the 14th.

ACA Health care mandates violate the 9th amendment (which was supposed to be unnecessary) because there's just nothing granting Congress the power to tell you what you can buy.

But, if there were 5 truly honest people in the Supreme Court, most of the federal government would have to disappear.

"...Before considering the question of gay marriage, a more fundamental question should be considered: Why marriage at all?...

...The state/community will be a party to any marriage and therefore has every right to say what marriages it will recognize. The gay couples seeking recognition must make their case for community involvement in their relationship when the sine qua non condition of biological procreation does not exist and there are sufficient laws to deal with any children in a gay relationship. Until the argument for an expansion of government is made, the basic principle of limited government, the minimal amount of laws our society needs to function, should prevail."

Bender:blue, it is you who are once again engaging in fables by bringing in that nonsense you learned in your leftist women's studies classes.

Bender, that is a non-argument, and it's telling that you resort to this without any substantive response. And for your information, I've never taken a women's studies class. Why don't you accept that it's possible for me to be a conservative Republican and still support gay marriage?

Rusty:But legally it is. It has a definite meaning in society and law. You might not think it matters, but it does. Do you want to redefine the meaning? You can do that by changing the law, but how are you going to change larger society where the term 'marriage' has both social and religious meaning.

Because the law follows the trends of society. I don't know if you've noticed, but acceptance of homosexuality is trending pretty quickly in our society. I will bet that in ten years gay marriage will be utterly uncontroversial.

Marriage has already been wrested from its religious roots. If you don't believe me, go down to the courthouse with a girl and get married. No priests or rituals required.

Will changing it to include non traditional pairings cheapen its currency?I don't think you can hijack the language in this sense and keep the meaning.

I'm not proposing to hijack anything. Language follows usage.

Balgefor:but the procreative bit is what makes marriage special and distinct from other deep interpersonal relationships --friends, lovers, etc. It's the designation of legitimate procreation and familial continuation.

Old people get married too, even post-menopausal women. Impotent men too.

If marriage is reduced to a form for the solemnization of romantic love without reference to procreation and legitimacy, what's the point?

I think love and commitment are enough. I didn't necessarily plan on having children when I married, but I was in love. If you took a survey across the country, I would guess 99% of respondents would say they married for love. Is that not enough?

Why is eros more deserving than, say, philia or storge? And empirically, people can develop deep romantic relationships with multiple lovers (that's why they cheat, after all), so why limit it to one?

My response to the polygamy question is that it's just a matter of practical governance. A one-to-one bilateral relationship is easy to keep track of and integrate into our society. Multiple partners leads to incredible complexities that are difficult, if not impossible, to iron out. Two examples: (1) If A marries B, and B marries C, are A and C also married? (2) What if a rich guy pays 100 homeless women to marry him for $100 each? His tax benefits would tremendous.

once you take procreation out of it, it really makes no sense.

And yet it makes perfect sense for millions of everyday Americans who don't have kids, don't plan to have kids, or can't have kids. Love is enough. Besides, why would I be against gay people committing to a monogamous relationship? How does that benefit me or society?

If marriage is reduced to a form for the solemnization of romantic love without reference to procreation and legitimacy, what's the point?

It's more than just love. I love a number of people. There's only one person that I want to share almost everything that I own with, that I want to be responsible for me if I ever can't care for myself, that I want to share my life with. There's a huge property component - (this is why long-term shacking up is so messy), basically the only things in our household that are "mine" or "his" are things that the other couldn't possibly use. If I have a problem, he helps me solve it, because what happens to me directly impacts him.

In addition to love, it's a partnership unlike any other relationship.

I think love and commitment are enough. I didn't necessarily plan on having children when I married, but I was in love. If you took a survey across the country, I would guess 99% of respondents would say they married for love. Is that not enough?

and re: Lyssa:

It's more than just love. I love a number of people. There's only one person that I want to share almost everything that I own with, that I want to be responsible for me if I ever can't care for myself, that I want to share my life with,.

I wrote, quite purposefully:

it's cast a broad penumbra so that many non-procreative relationships use the form for unrelated purposes (expressions of romantic fidelity, obtaining green cards, etc.),

I'm absolutely not making a point about why particular people get married -- once the form of marriage has been established, legally, people can get married for pretty much any reason they want, whether it's because they love one person above all others and want to signify it with marriage, or because they want to get a green card and an American spouse is the quickest way to do it, or because they want a lot of money and there's a rich old man willing to marry them. You can try to imbue legal marriage with all kinds of poetry and romance, but it's a form, and people use it for all kinds of things that have nothing whatsoever to do with whatever purposes you may have for your marriages.

The key question, I think, is why we have this form at all.

The quality, I think, that distinguishes marriage from other expressions of romantic fidelity, or the grave solemnization of other interpersonal ties (blood brothers), or other means of obtaining residence permits or wealth, is that children come out it, and the children that come out of a marriage are one's legitimate heirs, and the heirs to one's family. If children weren't generally involved, and if people throughout the millenia of human civilization didn't have a recurring need to draw the line between legitimacy and bastardy, I honestly don't think marriage would have survived down to the present day. And indeed, in many communities within the US, the rate of marriage is so low, that you might as well say it hasn't.

Now, none of this is to say that children necessarily come out. Just that if children aren't coming out, then there isn't really any need for the form. If it's available, sure, people will use it, and pour into it whatever significance they choose. But the other significance people attribute to marriage -- romantic attachment, for example -- changes from generation to generation. There is minimal continuity there, across the centuries, and if the peculiar form of marriage were unavailable, I have no doubt other forms would serve equally as well.

At any rate, however, as you might guess, I think the form of marriage has already become more or less a dessicated shell -- illegitimacy is not really taken seriously as a public policy problem, and in our wealthy, atomised society, families no longer cohere across generations, and in general, there is much less anxiety about preserving stores of family wealth across generations. Across that backdrop, frankly, it hardly matters what becomes of the legal form of marriage. So while I'm intensely interested in all this, I can't say I particularly care what the ultimate outcome of the gay marriage or polygamy debates turns out to be.

That said, I am confident that lean years will come again, and when they do, if civilisation has not collapsed utterly, older understandings of marriage will reassert themselves -- not consciously, perhaps, but in how and to what ends people use the marital form.

But that does not mean that it is possible for me to "marry" them. And it does not mean that any physical joinder with another man is an act of love, much less a fruitful and procreative love. It's not love, it's just sex.

That said, I am confident that lean years will come again, and when they do, if civilisation has not collapsed utterly, older understandings of marriage will reassert themselves -- not consciously, perhaps, but in how and to what ends people use the marital form.

I don't disagree with you here. I can definitely see a time when the social and political order to which we have grown accustomed breaks down and we revert to older practices.

I remember reading a fascinating article by a guy who was essentially a nuclear war strategist during the Cold War. One fascinating prediction of his was that after a nuke war we would collapse into small, easily defended communities where women of child-bearing age would be cosseted (there's that word!).

About that "nuclear war strategist" and his plan for post-nuclear war survival, involving living underground with a 10:1 female-to-male ratio --

General "Buck" Turgidson: Doctor, you mentioned the ratio of ten women to each man. Now, wouldn't that necessitate the abandonment of the so-called monogamous sexual relationship, I mean, as far as men were concerned?

Dr. Strangelove: Regrettably, yes. But it is, you know, a sacrifice required for the future of the human race. I hasten to add that since each man will be required to do prodigious... service along these lines, the women will have to be selected for their sexual characteristics which will have to be of a highly stimulating nature.

Excuse me? Fables? You've never heard the term paterfamilias? Marriage contracts? In ancient Rome and Greece (and most ancient societies), women were the property of their fathers (or the man of the house if the father was dead) until marriage, at which point she was the property of her husband. A man could kill his child or wife for disobedience. That's not left-wing tripe, that's just history. Shoot, there are still cultures around today where these "fables" go on. Just look at Afghanistan.

About that "nuclear war strategist" and his plan for post-nuclear war survival, involving living underground with a 10:1 female-to-male ratio --

Something like that, but unlike Dr. Strangelove it would just be whoever happened to survive. But yeah, in a society with scarce resources and a problem of underpopulation, female fertility becomes an incredibly valuable resource. Men with guns would hoard and protect such resources, just as they would with food and water. I don't know if women would become property per se, but their freedom would become very restricted.

In case anyone is interested, here's a link to this guy's piece. It was originally posted on a messageboard way back in the day. I have no idea if it's credible or not, but it's a fascinating read and it certainly gives you much to think about.

Blue@9 said... In ancient Rome and Greece (and most ancient societies), women were the property of their fathers (or the man of the house if the father was dead) until marriage, at which point she was the property of her husband. A man could kill his child or wife for disobedience.

Good points, Blue, but then again, back when those societies were alive and well, I could have killed you for any number of reasons.

DOMA is unconstitutional because it says that the traditional Judeo-Christian view of marriage as a sacred covenant between one man and one woman is the only one the country can have. That violates the free exercise of religion for some sects of Mormonism, some sects of Islam, and tells atheists that they must act on someone else's religious beliefs. First Amendment says Congress can't make that law.

The ACA is unconstitutional because there is nothing in the enumerated powers of the federal government that says that the federal government can force any individual engage in commerce or force any individual to enter into a contract with any other individual or company in order to have interstate commerce to regulate. Also, under current federal law, I must purchase health care insurance from an insurer in the state where I live. If I as an individual cannot engage in interstate commerce to purchase the mandated insurance coverage, how does the mandated coverage fall under the federal commerce clause?

DOMA is unconstitutional because it says that the traditional Judeo-Christian view of marriage as a sacred covenant between one man and one woman is the only one the country can have. That violates the free exercise of religion for some sects of Mormonism, some sects of Islam, and tells atheists that they must act on someone else's religious beliefs. First Amendment says Congress can't make that law.

I think there's long standing precedent that the free-exercise clause doesn't prohibit Congress or the states from banning polygamy. There's a whole string of late 19th century cases in which the Supreme Court upholds all kinds of laws punishing polygamy against Mormon defendants who try to defend on grounds of religious freedom.

Also, really, how Judeo-Christian is the ban on polygamy? Certainly in Roman times, polygamy appears to have been practiced by the Jews and I see no reason to doubt that early Christians practiced it as well. The ban on polygamy in Western civilisation traces not to Judeo-Christian religious sources but to the laws of the Roman Empire. Suetonius mentions that Caesar tried to legalise polygamy (at least for himself, personally), so the Roman ban on polygamy must already have been well-established in the Republican period. This ban was continued during the Empire in codes promulgated by Diocletian, and possibly other emperors.